Citation NR: 9714302
Decision Date: 04/25/97 Archive Date: 05/01/97
DOCKET NO. 95-06 728 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for an eye disorder.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Michele M. Florack, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1951 to
December 1952.
This appeal to the Board of Veterans’ Appeals (Board) arises
from a November 1993 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Paul,
Minnesota.
In November 1994 statement from the veteran, accepted as his
substantive appeal, he stated that he did not seek service
connection for meibomianitis and wanted that issue to be
withdrawn from his appeal. The Board hereby considers that
issue withdrawn from the appeal, pursuant to 38 C.F.R.
§ 20.204 (1996).
CONTENTIONS OF VETERAN ON APPEAL
The veteran contends that he had eye problems in 1952 while
in service. He claims that diesel fuel was accidentally
sprayed in his face and that it may have been the start of
his problems. He reports that he was treated at Yokohama
Hospital with various pairs of glasses with prisms, and that
his vision was eventually corrected with glasses. The
veteran’s representative contends that this testimony is new
and material evidence with which to reopen the veteran’s
previously denied claim.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not
submitted new and material evidence which would allow his
claim for service connection for an eye disorder to be
reopened.
FINDINGS OF FACT
1. In a September 1992 RO rating decision, service
connection for an eye disorder was denied on the basis that
the only disorder found, defective vision, is not a disease
or injury within the meaning of applicable legislation
providing for payment of VA disability compensation benefits.
The veteran did not timely appeal that decision.
2. Evidence submitted by the veteran since the September
1992 rating decision is not does not tend to establish a
reasonable possibility of a changing the outcome of the case.
CONCLUSIONS OF LAW
1. The September 1992 RO rating decision which denied
service connection for an eye disorder is final. 38 U.S.C.A.
§ 7105 (West 1991); 38 C.F.R. § 20.1103 (1996).
2. Evidence submitted since the September 1992 rating
decision is not new and material and the veteran’s claim is
not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§
3.104(a), 3.156(a) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking service connection for an eye
disorder. To establish service connection for a claimed
disability, the facts, as shown by evidence, must demonstrate
that a particular disease or injury resulting in current
disability was incurred in wartime service, or in the case of
a preexisting injury or disease was aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991). Service connection
may also be granted for disease which is diagnosed after
discharge from military service, when all of the evidence
establishes that such disease was incurred in service. 38
C.F.R. § 3.303(d) (1996); Cosman v. Principi, 3 Vet.App. 303,
305 (1992).
Service connection may not be granted for congenital or
developmental abnormalities. 38 C.F.R. §§ 3.303(c), 4.9
(1996). See Winn v. Brown, 8 Vet.App. 510, 516 (1996), and
cases cited therein.
This, in this case, the issue at hand is whether the veteran
currently has an eye disorder, other than defective vision,
which was either shown at separation from service or is shown
by competent evidence to be related to service.
Finality
Service connection for an eye disorder was denied by a rating
decision dated in September 1992 on the basis that only
defective vision was shown in service, which is a
developmental or congenital abnormality. The veteran did not
appeal this decision and it became final.
To reopen a claim where there is a prior final determination
by the RO, a claimant must submit new and material evidence.
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is new
when it was not previously of record and is not “merely
cumulative of other evidence on the record,” and material
when it is both “relative to and probative of the issue at
hand” and of sufficient weight to present a reasonable
possibility that the new evidence, when viewed in conjunction
with the old, will change the disposition of the claim.
Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski,
1 Vet.App. 140, 145 (1991).
The United States Court of Veterans Appeals (Court), has set
forth a two-step analysis to be applied when a claimant seeks
to reopen a claim. The Board must first determine whether
the evidence is new and material and, if so, the case will be
considered to be reopened, and the claim must then be
evaluated in light of the entire evidence of record, both new
and old. See Manio, 1 Vet.App. at 145.
“New” evidence is that which is not merely cumulative of
other evidence of record. “Material” evidence is that which
is relevant to and probative of the issues at hand and which
. . . must be of sufficient weight or significance (assuming
its credibility) that there is a reasonable possibility that
the new evidence when viewed in the context of all the
evidence, both new and old, would change the outcome. Cox v.
Brown, 5 Vet.App. 95 (1993).
The Court has set forth guidelines regarding the credibility
to be accorded to the additional evidence submitted in an
application to reopen a final decision. These guidelines
require that in determining the issue of whether the
additional evidence submitted is new and material, a question
of law, the credibility of the evidence must be presumed.
Justus v. Principi, 3 Vet.App. 510, 512-513 (1992). This
presumption of credibility is not unlimited. Specifically,
Justus does not require the VA to consider patently
incredible evidence (e.g. the inherently false or untrue) to
be credible. See Duran v. Brown, 7 Vet.App. 216 (1994).
In Evans v. Brown, 9 Vet.App. 273 (1996), the Court stated
that new and material evidence is evidence that meets the
following requirements: (1) the evidence is not of record at
the time of the last final disallowance of the claim and not
merely cumulative of other evidence that was then of record;
(2) the evidence is probative of the issue at hand; and (3)
the new and probative evidence, in light of all of the
evidence of record, raises a reasonable possibility that the
outcome of the claim on the merits would be changed. As to
the determination of the materiality of the evidence
presented since the last final disallowance of the claim, the
newly presented evidence does not need to be probative of all
of the elements that are required to award a claim, but
instead needs to be probative only as to each element that
was a specified basis for the last disallowance.
The “old” evidence
The evidence of record and considered at the time of the
September 1992 rating decision included the veteran’s service
medical records. It was noted that the veteran had defective
vision and wore glasses. The veteran had numerous physical
complaints throughout his service and was diagnosed as having
chronic hypochondriacal reaction. The only complaint
referable to the eyes was in October 1951, in which he
complained, among numerous other problems, of burning eyes.
No cause was reported.
Reports of numerous post service physical examinations were
also of record, but had no complaints or findings pertinent
to the eyes, except that it was noted that the veteran’s
vision was corrected with refractive lenses. During a June
1969 VA examination, the veteran reported a negative history
with respect to his eyes.
Also of record in September 1992 were the veteran’s
contentions, starting with his claim for service connection
for an eye condition in March 1992. He indicated that his
eyes “mis-focus as they did on active duty.” In May 1992,
the veteran wrote to the RO, stating “I don’t have any
specific diagnosis for my eye condition. I, as well, don’t
have any medical records showing treatment.”
The September 1992 rating decision
The RO, in the September 1992 rating decision, denied service
connection for an eye condition because the veteran’s service
medical records were negative for any eye disorder other than
defective vision, which was a congenital or developmental
abnormality for which service connection could be granted,
and there was no evidence of any other current disability.
Additional evidence
In April 1994, the veteran was afforded a personal hearing
which was attended by his wife. His testimony included
reference to an incident in service in which diesel fuel was
accidentally sprayed in his eyes, as well as treatment for
eye problems in 1952 at Yokohama Hospital. Also submitted is
a March 1996 statement from a VA physician that the veteran
had “convergence insufficiency” and that he required prisms
on his glasses to correct for the condition.
Analysis
The March 1996 VA medical record shows only that the veteran
is treated with refraction for his eye condition. This is
consistent with the service and post-service medical records
which were considered by the RO in September 1992. Moreover,
no link to service is alluded to by the treating physician.
Current treatment records many years after service which do
not relate the current condition to service are not new and
material evidence. See Cox, 5 Vet.App. at 97.
As for the veteran’s hearing testimony, it does not serve to
change the outcome of this case. Specifically, it is not
evidence that the veteran had an eye disorder, other than
defective vision, on his separation from service. The Board
notes that it does not appear that the service medical
records are incomplete, despite the veteran’s allegation that
he was hospitalized for eye problems in 1952. However,
assuming the veteran’s recollection is correct, and he was
treated for an eye problem in Yokohama Hospital, it would not
change the fact that at separation he had no eye disorder
other than defective vision. If he was in fact treated for
an eye disorder in 1952, due to exposure to diesel fuel or
for any other reason, the service medical records indicate
that such was resolved by separation. The veteran’s
testimony is therefore not material evidence, because when
viewed in the context of all of the evidence of record it
does not present a reasonable possibility of changing the
disposition of the claim. See Sklar, at 145.
In summary, new and material evidence sufficient to reopen
the claim for service connection for an eye disorder has not
been submitted, and thus the claim remains denied.
ORDER
New and material evidence to reopen the veteran’s claim for
service connection for a eye disorder has not been submitted.
The claim is not reopened, and the benefit sought on appeal
remains denied.
BARRY F. BOHAN
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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